IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

JANUARY 23, 2004 Session

LEROY MOSBY, ET AL. v. MEMPHIS AREA TRANSIT 

AUTHORITY, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. 305930-8 T.D. D’Army Bailey, Judge

No. W2003-00451-COA-R3-CV - Filed May 19, 2004

This case arises out of a motor vehicle accident, which resulted in the death of Deceased, a farepaying passenger of a bus. Plaintiffs, Deceased’s heirs, brought a wrongful death action against the

driver of the Cadillac in the bus/car collision and Defendants, the driver of the bus and the Memphis

Area Transit Authority. At the close of Plaintiffs’ proof, the trial court granted Defendants’ motion

for involuntary dismissal pursuant to Rule 41.02(2) of the Tennessee Rules of Civil Procedure. For

the reasons stated below, we affirm the decision of the trial court.

Tenn. R. App. P. 3.; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS,J., delivered the opinion of the court, in which DAVID R.FARMER,J., and HOLLY

M. KIRBY, J., joined.

Irwin I. Cantor, Memphis, TN, for Appellants

John M. Moore, Memphis, TN, for Appellees

OPINION

Facts and Procedural History

On the morning of October 22, 1999, Katie Lee Mosby (“Deceased” or “Mosby”) paid the

fare and boarded a bus operated by the Memphis Area Transit Authority (“MATA”) and driven by

Emmett E. Miller (“Miller” or collectively with MATA, “Defendants”), who held a commercial

driver’s license at the time. On that day, the weather was clear and the roads were dry. The bus

traveled southbound on Millbranch Road, a five lane street, in the curb lane and headed downhill

after a hill crest, where it approached a “T” intersection with Finley Road, a two lane street.

Millbranch Road has a speed limit of 40 miles per hour and Finley Road has a speed limit of 35

miles per hour. 
It is not clear why plaintiffs took a default judgment against Matthews on June 21, 2002, and later

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entered a voluntary non-suit on December 26, 2002.

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As the bus approached the intersection, Deon Matthews (“Matthews”), who did not have a

driver’s license at the time, was driving a Cadillac eastbound on Finley Road towards Millbranch

Road. Matthews had borrowed the car from a family friend, Velbsy Campbell, and began to have

difficulty with the brakes. When Matthews attempted to brake at the intersection of Finley and

Millbranch, the brakes ceased to function and Matthews drove onto Millbranch Road, disregarding

the stop sign on Finley Road. Matthews attempted to veer right on Millbranch Road to avoid the

bus, but the bus collided with the Cadillac, hitting the car on the driver’s side door. The Cadillac

veered away from the bus after the impact and ran into a utility pole. Miller testified that when he

saw the Cadillac, it was approximately forty-five feet away and that he was very close to the impact

point when he realized a collision was imminent. The bus changed directions from south to

southeast because, after checking his rear view mirror, Miller turned left just before the impact in

an attempt to avoid a collision. In addition, Miller testified that he pressed on the bus’s brakes.

After the impact, the bus crossed over the other side of Millbranch Road, knocked over a utility pole,

went through a wrought iron fence, and collided with a day care center where it came to rest. 

During the accident, Mosby, who was seated behind Miller in the driver’s seat, was thrown

to the floor right next to Miller. Though the radio on the bus was inoperative, Miller was able to

contact emergency services using his mobile phone. Mosby was taken for medical treatment to The

Med, and was later found by her daughter, Bettie Jean Faulkner. Mosby, who exhibited facial

expressions of pain though never regaining consciousness, was visited by her four children and

remained at The Med until she died on October 31, 1999, from the injuries she sustained in the

bus/car collision. 

On December 14, 1999, Mosby’s four children, Leroy Mosby, Joann Mosby Diffay, Clarence

Mosby, and Bettie Jean Faulkner (collectively the “Plaintiffs”), filed a complaint against MATA,

Miller, Matthews, and Velbsy Campbell, for the wrongful death of Mosby. Defendants answered,

denying the allegations of negligence in Plaintiffs’ complaint and praying the complaint be

dismissed. Matthews, though served with Plaintiffs’ complaint, never answered or appeared, and

the trial court granted Plaintiffs’ motion for default judgment against Matthews. Plaintiffs

subsequently took a voluntary nonsuit for Matthews and Campbell and proceeded to trial against

Defendants. After hearing the Plaintiffs’ proof, Defendants moved for directed verdict, which the 1

trial court treated as a motion for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2),

because the hearing was not before a jury. The trial court concluded the Plaintiffs failed to establish

that the Defendants were guilty of any “proximate fault causing or contributing to the injuries and

damages” of Deceased and entered a judgment in favor of Defendants. Plaintiffs appealed to this

Court and present the following issues for our review:

I. Whether the trial court erred when it excluded a portion of the MATA safety

manager’s accident report and discovery deposition wherein he concluded that Miller

did not apply the bus’s brakes; and
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II. Whether the trial court erred when it granted Defendants’ motion for dismissal based

upon Plaintiffs’ failure to establish a prima facie case of negligence on the part of the

Defendants.

For the following reasons, we affirm the decision of the trial court.

Standard of Review

When a trial court sits without a jury, we review its findings of fact de novo upon the record

accompanied by a presumption of correctness for the finding, unless the preponderance of the

evidence is otherwise. Tenn. R. App. P. 13(d). We are mindful that a trial court has wide discretion

in the matter of the qualifications of an expert witness and will not be reversed unless it abuses that

discretion. Blalock v. Claiborne, 775 S.W.2d 363, 366 (Tenn. Ct. App. 1989) (quoting Stokes v.

Leung, 651 S.W.2d 704, 706 (Tenn. Ct. App. 1982));see also Otis v. Cambridge Mut. Fire Ins. Co.,

850 S.W.2d 439, 443-44 (Tenn. 1992). For questions of whether or not a trial court should have

allowed or excluded evidence pursuant to the rules of evidence concerning hearsay, we review such

questions de novo with no presumption of correctness. Russell v. Crutchfield, 988 S.W.2d 168, 170

(Tenn. Ct. App. 1998) (citing City of Tullahoma v. Bedford County, 938 S.W.2d 408 (Tenn. 1997)).

In addition, “in the case of a motion for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2),

the trial court must impartially weigh and evaluate the evidence as it would after the presentation of

all the evidence and must deny the motion if the plaintiff has made out a prima facie case.” Smith

v. Inman Realty Co., 846 S.W.2d 819, 822 (Tenn. Ct. App. 1992) (citing City of Columbia v. C.F.W.

Constr. Co., 557 S.W.2d 734, 740 (Tenn. 1977)). Therefore, when we review the trial court’s ruling

on Defendants’ motion for involuntary dismissal, “we need only determine whether the evidence

makes out a prima facie case of liability on [the Plaintiffs’] part.” Id.

Expert Witness Qualifications

Plaintiffs argue that the trial court erred when it refused to allow into evidence the conclusion

of MATA’s safety manager, Judd Killebrew (“Killebrew”), either in his accident report or

deposition, that Miller never applied the brakes of the bus. Specifically, Plaintiffs argue that such

statements constitute an exception to the hearsay rule pursuant to Tenn. R. Evid. 803 (1.2) as an

admission by a party opponent. Such rule allows the admission of statements offered against the

party that is “a statement by a person authorized by the party to make a statement concerning the

subject.” Tenn. R. Evid. 803 (1.2). In addition, the rule provides that “[a]n admission is not

excluded merely because the statement is in the form of an opinion.” Tenn. R. Evid. 803 (1.2).

Plaintiffs argue that, because Killebrew is an agent for MATA, his statement that Miller never

applied his brakes should have been admitted into evidence. Plaintiffs have incorrectly argued this

issue.

The trial court determined that Killebrew’s conclusion about Miller’s failure to apply his

brakes was inadmissible, not because it did not fall within an exception to the hearsay rule, but

because Killebrew was not qualified to make such a conclusion as there was no foundation to

establish Killebrew’s expertise in the field of accident reconstruction. As this Court has noted
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before, “[n]o assertion of a party, if offered in evidence by a party-opponent, may be excluded as

hearsay. It may be excluded on the ground that it is irrelevant, or privileged, or for many other

reasons, but never because it is hearsay.” Curtis v. Van Dusen, 723 S.W.2d 648, 650 (Tenn. Ct.

App. 1986) (quoting David F. Binder, Hearsay Handbook (2nd ed. 1983)) (emphasis added). In

addition, Rule 803 states, before enumerating numerous exceptions, that “[t]he following are not

excluded by the hearsay rule. . . .” Tenn. R. Evid. 803 (emphasis added). Though Killebrew’s

conclusion may not be excluded on the basis that it is hearsay, it may still be excluded on the basis

that Killebrew was not qualified in the field of accident reconstruction to make such a conclusion.

Therefore, we must determine whether the trial court abused its discretion when it determined that

Killebrew was not qualified as an expert in the area of accident reconstruction to make such a

conclusion.

In this case, at the time of trial, Killebrew had been an employee with MATA for over

twenty-seven years, he held his commercial driver’s license, and he had been the safety manager for

MATA for over three years, beginning in July 1999. However, he had completed only one training

course before the accident on October 22, 1999, and had taken a total of only three, forty-hour

training courses by the time of trial. Though Killebrew admitted that he had little training in accident

reconstruction, he concluded that the tire marks made by the bus were not skid marks and indicated

that Miller never applied the bus’s brakes. We cannot say that the trial court abused its discretion

when it refused to admit Killebrew’s conclusions and opinions about the accident on the basis that

Killebrew was not a qualified expert in the field of accident reconstruction. Therefore, we affirm

the trial court’s ruling on this issue.

Involuntary Dismissal

Though Defendants moved for a directed verdict after the Plaintiffs’ proof, the trial court

correctly treated Defendants’ motion as a motion for involuntary dismissal under Tenn. R. Civ. P.

41.02(2). As stated above, when such motion is made, the trial court must weigh and evaluate the

Plaintiffs’ evidence and determine if the Plaintiffs established a prima facie case. Inman Realty Co.,

846 S.W.2d at 822 (citing C.F.W. Constr. Co., 557 S.W.2d at 740). After hearing the parties’

arguments on the motion, it appears the trial court dismissed Plaintiffs’ action against Defendants

for a lack of evidence that Defendants were the proximate cause of Deceased’s death. After our

review of the record, we agree that the Plaintiffs failed to establish a prima facie case of negligence

on the part of the Defendants.

To establish an action for negligence, a complainant must prove the following elements: (1)

a duty of care owed by defendant to plaintiff; (2) conduct falling below the applicable standard of

care resulting in a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate

causation. McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991) (citing Lindsey v. Miami Dev.

Corp., 689 S.W.2d 856, 858 (Tenn. 1985); Shouse v. Otis, 448 S.W.2d 673 (Tenn. 1969); Ruth v.

Ruth, 372 S.W.2d 285 (Tenn. 1963)); Anthony v. Holland, No. W2001-00745-COA-R3-CV, 2001

Tenn. App. LEXIS 900, at *4-5 (Tenn. Ct. App. Nov. 29, 2001) (citing Waste Mgmt. Inc. of Tenn.
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v. S. Cent. Bell Tel. Co., 15 S.W.3d 425, 430 (Tenn. Ct. App. 1997)). “In Tennessee, proximate

cause has been described as that act or omission which immediately causes or fails to prevent the

injury; an act or omission occurring or concurring with another which, if it had not happened, the

injury would not have been inflicted.” Tenn. Trailways, Inc. v. Ervin, 438 S.W.2d 733, 735 (Tenn.

1969) (citing Deming & Co. v. Merchants’ Cotton-Press & Storage Co., 17 S.W. 89 (Tenn. 1891);

Southeastern Greyhound Lines, Inc. v. Groves, 136 S.W.2d 512 (Tenn. 1940)). We note that neither

the violation of a statute nor a breach of duty by a common carrier to a fare-paying passenger is of

any consequence unless a defendant’s acts are shown to be the proximate cause of the injury

sustained. Garrett v. McConkey, 466 S.W.2d 498, 501 (Tenn. Ct. App. 1970) (citing Tenn.

Trailways, Inc v. Ervin, 438 S.W.2d 733 (Tenn. 1969); Biggert v. Memphis Power & Light Co., 80

S.W.2d 90 (Tenn. 1935)).

In this case, the Plaintiffs put on little proof of how fast the bus was traveling at the point of

collision. The only testimony in the record offered to show the speed of the bus was the testimony

of Matthews, who stated that the bus was traveling approximately fifty miles per hour. As the trial

court below noted, no scientific or expert testimony was presented to determine how fast the bus was

traveling. In addition, the trial court seemed to question Matthews’ credibility given that, in his

original statement to the police, Matthews stated he was not the driver of the Cadillac. We note that:

Where the trial judge has seen and heard witnesses, especially where issues of

credibility and weight of oral testimony are involved, on review considerable

deference must still be accorded to those circumstances. Where the issue for decision

depends on the determination of the credibility of witnesses, the trial court is the best

judge of the credibility and its findings of credibility are entitled to great weight.

This is true because the trial court alone has the opportunity to observe the

appearance and demeanor of witnesses.

Payne v. City of Memphis, 1993 Tenn. App. LEXIS 755, at *7-8 (Tenn. Ct. App. Dec. 9, 1993)

(quoting Tenn-Tex Props. v. Brownell-Electro, Inc., 778 S.W.2d 423, 425 (Tenn. 1989)); see also

McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995). 

Next, Miller testified that, when he saw the Cadillac at the intersection and knew a collision

was imminent, he removed his foot from the accelerator and pressed on the brake pedal. He also

stated that he swerved to the left in order to avoid an impact. Given our disposition of the first issue

that the trial court was correct when it excluded the conclusions of Killebrew concerning whether

Miller pressed on the bus’ brakes, the only evidence that Plaintiffs offered that Miller did not press

on the brakes was Miller’s statement to the police that he swerved to the left. Plaintiffs argue that

the absence of any positive statement establishes that Miller did not press the brakes to avoid an

impact with the Cadillac. Even if the Plaintiffs had effectively established that Miller never pressed

the brakes, there was no expert testimony offered by Plaintiffs to suggest that pressing the brakes

would have prevented Deceased from sustaining any injuries. In addition, one of the passengers of

the bus testified that, prior to the collision with the Cadillac, there was no indication that Miller was

operating the bus in an unsafe manner.
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Finally, the testimony established that Matthews was driving the Cadillac on Finley Road and

that he lost control of his car when the brakes ceased to function. This resulted in the Cadillac

running through a stop sign and colliding with the MATA bus, sending the bus through a utility pole,

a wrought iron fence, and into the side of a day care center. Given the circumstances of this case,

we cannot say that the trial court erred when it weighed and evaluated the evidence and determined

that the Plaintiffs failed to establish a prima facie case for negligence based on a lack of proximate

cause. Therefore, we affirm the decision of the trial court granting Defendants’ motion for

involuntary dismissal.

Conclusion

For the foregoing reasons, we affirm the decision of the trial court. Costs of this appeal are

taxed to Appellants, Leroy Mosby, Joann MosbyDiffay, Clarence Mosby, and Bettie Jean Faulkner,

and their surety for which execution may issue if necessary.

___________________________________ 

ALAN E. HIGHERS, JUDGE